Threat to Labor’s parental leave

The Gillard government’s parental leave scheme could be jeopardised by a series of inconsistent rules that mean some parents will be entitled to payments but may not be allowed to take leave from their work.

Less than a fortnight out from the January 1 start date for the taxpayer-funded scheme, the government has not resolved a series of clashes between the payments and an existing entitlement for new parents to take up to 12 months’ unpaid leave.

Employers and unions are warning of widespread confusion after the ­government failed to resolve these ­concerns at a confidential meeting of an “implementation group" designed to iron out problems last week.

Some new parents could be forced to stay on leave for an entire year even if they wanted to return to work early. Other parents could be forced to end their leave early if they return to work for only a couple of days, despite being allowed to return to work for up to 10 “keeping in touch" days without losing government payments. A ­parent can also be stopped from ­taking leave more than six weeks before the birth date, despite meeting the requirements for paid leave three months before the birth.

The powerful shop assistants’ union has attacked the government over its refusal to address these problems, which it raised with Prime ­Minister
Julia Gillard
in March.

Some employers oppose ­further changes to the rules because they fear this will impose a more generous parental leave scheme by stealth.

The confusion follows a series of implementation problems with ­government programs such as the mining tax, the home insulation scheme and stimulus spending on school facilities.

The national secretary of the Shop, Distributive and Allied Employees’ Association (SDA), Joe de Bruyn, said the parental scheme would be disrupted if the problems were not addressed urgently.

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“There are going to be problems unless the government makes an announcement before January 1 that they intend to address these issues and make it retrospective to January 1," Mr de Bruyn said. “It doesn’t make sense that you become entitled to payment for parental leave but you are not entitled to take leave."

Mr de Bruyn said he raised a series of concerns with Ms Gillard in March and she referred them to a ­formal advisory group of business and unions known as the National Workplace Relations Consultative Council, which was due to meet in the middle of this year. But the meeting was cancelled because of the leadership turmoil in the Labor Party and only took place last Monday, Mr de Bruyn said.

“I raised it with Julia in March this year," he said. “[The council] should have met in the middle of the year but didn’t because of the political imbroglio at the time."

After the council meeting, the ­concerns were referred to a special parental leave implementation group that includes representatives from National Australia Bank and Woolworths and met last Wednesday, but the complaints were not resolved at this meeting.

The problems emerge because the new parental leave scheme has more generous eligibility rules than the existing right for parents to take up to 12 months’ unpaid leave under the ­legislative safety net known as the National Employment Standards (NES).

The new parental leave scheme, which begins on January 1, will pay new parents for 18 weeks at the minimum wage, which is currently $570 a week. But the scheme only covers the payments, and new parents must meet tougher eligibility rules under the NES for unpaid leave so they can be guaranteed their employer will keep their job waiting for them when they return from leave.

To be eligible for up to 12 months’ unpaid leave under the NES, parents must have worked for the same employer for at least the past 12 months. They can only take leave up to six weeks before the expected birth, unless there is a medical reason to take leave earlier.

But employees are eligible for payments under the new paid parental leave scheme after only 330 hours of work across 10 of the 13 months before the birth. They can apply for the payments any time up to a year after the birth, but unions believe the payments could kick in as early as three months before the birth.

Mr de Bruyn has urged the government to amend its laws to make the more generous eligibility requirements apply to both the payments and the leave.

The influential union leader has proposed changes to give women the right to leave work earlier.

“There will be times when a woman wants to go earlier than six weeks before the expected birth; it could be that she has other children who she wants to look after, she may be getting tired, there may be a range of different reasons," Mr de Bruyn said. “It’s not an issue for the employer. If you start your leave ­earlier, that means you finish it earlier."

The union also wants changes to give parents a right to return to work before their period of unpaid leave­ ­finishes if they give their employer four weeks’ notice. Even if a woman had a still birth and wanted to return to work before the 12 months, she would not have this entitlement, Mr de Bruyn said.

“A woman is only able to come back to work earlier if the employer agrees. She has no right to return to work ­earlier if she changes her mind," he said. “How can anyone be sure that their intention as to the date of coming back, which they have made at the time of going on leave, is not going to change over a period that could be up to 12 months."

Mr de Bruyn said the changes would allow “sensible flexibility" and would not add to business costs. Retailers like Coles and Woolworths agreed with the unions’ suggestions, he said.

But a Coles spokesman said the union had proposed allowing mothers to take leave earlier or return to work earlier as part of enterprise bargaining. Discussions were still ongoing.

The Australian Chamber of Commerce and Industry (ACCI) warned that employers were already confused by the two sets of rules. But ACCI chief executive Peter Anderson urged the government to “resist any union moves to push increases to the unpaid standard simply because there is a new paid parental leave scheme".

“This confusion has been caused by the government putting in place more generous eligibility requirements for the paid parental leave scheme than for the existing standard on unpaid parental leave," Mr Anderson said.

A spokeswoman for Workplace Relations Minister Chris Evans said that the government planned to change legislation to ensure parents could return to work for “keeping in touch" days without invalidating their leave.

But this would not happen until at least February, more than a month after the scheme begins.

Senator Evans’ spokeswoman said parents who did not meet the requirements to take leave could use annual leave or negotiate other arrangements with their employers.

“The government’s PPL scheme has a different purpose from the NES, and therefore more generous eligibility requirements," she said.

“These more generous eligibility requirements mean that PPL will be paid to more women, including those in seasonal and casual work." Parents who are ineligible for unpaid parental leave under the NES may access paid leave (such as annual leave, long service leave) while in receipt of Parental Leave pay. Alternatively, they may negotiate unpaid leave with their employer.